General terms and conditions
JIFELINE NETWORKS B.V. GENERAL TERMS AND CONDITIONS
1. DEFINITIONS
Capitalised terms have the following meanings:
- "Agreement": the applicable Order Form and these General Terms and Conditions, including any attachments and schedules;
- "Authorised Users": employees of Partner or Customer authorised by Jifeline to use the Services;
- "Confidential Information": any confidential and/or proprietary knowledge, data or information of or relating to Jifeline, including, but not limited to: (i) trade secrets, know-how, processes, ideas, improvements, source codes, (ii) information about plans for research, development, new services and/or products, marketing, advertising and sales, distribution, business plans, business discussions, business forecasts, budgets and unpublished financial statements, (iii) licences, prices and costs, suppliers, End Users, distribution arrangements, and any information about the skills and compensation of Jifeline's employees, consultants, agents and/or independent contractors - regardless of how it is stored or communicated;
- End-user data "Product(s) to be delivered":all (i) Hardware and (ii) all other products sold to and subsequently used by Partner, as specified in the Order Form;
- "End user": a natural person or legal entity (usually a car repair shop, bodyshop or garage) to whom Partner provides its services, on the basis of the general terms and conditions agreed between Partner and that party, at Partner's risk and under Partner's own responsibility, to whom Partner provides remote electronic programming and/or vehicle diagnostics by using the Hardware and Services set out in this Agreement, to the extent that the Order Form permits such use;
- "End-user data": data, which may be personal data, relating to, inter alia, vehicle breakdowns, location(s) and drivers/owners, potentially accessible to Jifeline and Authorised Users, made available by the End User(s) on behalf of Partner for the purpose of using the Services;
- "Fees": any periodic or one-off fee payable for the purchase of Products and/or use of the Services, as further specified in the Order Form;
- "Hardware": the computer hardware and technical equipment to be used by Partner to perform the diagnostic services to its End Users, which is sold to Partner by Jifeline, as specified in the Order Form;
- "Intellectual property": all intellectual property rights, including but not limited to copyright, database rights, design rights, trademarks, patents, know-how, whether registered or unregistered and whether already existing or arising in the future, including the right to claim, apply for, extend or register such intellectual property rights;
- "Jifeline Dashboard Software": an online application (not accessible to End Users) used at the receiving end (in the relevant service centre), which allows Partner to manage its JRIs and link specific requests for assistance from End Users to the relevant diagnostic devices;
- "Jifeline Local Interface (JLI)".: the interface (hardware) at the receiving end (in the relevant service centre), through which Partner handles and manages End User requests, and which connects to a diagnostic device via the Internet;
- "Jifeline Remote Interface (JRI)": the interface (hardware) that connects the OBD-II to the Jifeline/Partner application or, alternatively, can itself connect to the Jifeline Dashboard Software;
- "Jifeline/Partner application": an application that allows a JRI to be connected to the JLI and for which Partner's brand name can be used to the extent permitted in the Agreement;
- "OBD-II": a physical plug/connection in a vehicle, used for reading and/or programming vehicle electronics (on-board diagnostics);
- "Services": (i) the Software and (ii) related services provided by Jifeline to Partner relating to Jifeline's facilitation of remote electronic programming of the vehicle or components thereof, diagnostics or information downloading, so that Partner can provide its services to the End Users, as specified in the Order Form;
- "Software": the software and/or application(s), including technical specifications and related documentation, including any updates or enhancements thereto, accessible to Partner via the Internet or other means of access designated by Jifeline, to be used (in part) in conjunction with the relevant Hardware, for which Jifeline will give Partner permission to use, as specified in the Order Form;
- "Running time": the term of the Agreement, as specified in the Order Form.
2. CONCLUSION OF THE AGREEMENT
2.1. To make the Agreement binding, an Order Form signed by Partner (electronically or otherwise) is required.
2.2. To the extent there is any conflict between these Terms and Conditions and the Order Form, the Order Form shall be binding.
3. SCOPE OF THE AGREEMENT
3.1. Subject to the terms of the Agreement, Jifeline shall provide/deliver the Services and supply the Hardware as set out in the applicable Order Form.
3.2. Jifeline is entitled to engage a subcontractor in the performance of the Agreement.
4. ACCESS TO SERVICES AND LICENCE
4.1. In accordance with these Terms and Conditions and the Order Form, Jifeline grants to Partner a non-exclusive, non-transferable right to access the Services and use the Software described in the Order Form, solely by using Hardware provided by Jifeline (to the extent required), by the (number of) Authorised Users and during the Term, solely for the intended purposes, unless otherwise specified in the Order Form.
4.2. Upon payment of (the relevant part of) the Fee, Partner shall have the non-exclusive, limited right to use the Software to provide remote electronic programming and diagnostic services to its End Users, in accordance with the terms and conditions of the Agreement.
4.3. Notwithstanding Partner's right to grant sublicences, the Software may only be used by Authorised Users in Partner's business or organisation and may not be used to provide services to third parties other than End Users.
4.4. In respect of Authorised Users, Partner shall ensure that:
a. an Authorised User's account is used by no more than one person at a time.
b. each Authorised User logs in (as applicable) with a secure password for their use of the Service, that such password is changed at least once every three months and that each Authorised User keeps their password to themselves;
c. a written, up-to-date list of Authorised Users is maintained and can be provided to Jifeline at any time within 5 working days of Jifeline's written request;
4.5. Nothing in these Terms and Conditions obliges Jifeline to provide or make available copies of computer programmes or code relating to the Software, in object code or source code form.
4.6. The Software and associated documentation specifications and features are subject to change at any time with and without notice.
4.7. Jifeline reserves the right, in its sole discretion, to temporarily suspend Partner's access to and use of the Services: (a) during scheduled downtime for upgrades and maintenance to the Service, at Jifeline's discretion, where Jifeline will use commercially appropriate efforts to give Partner advance notice; (b) if the Service is unavailable due to circumstances beyond Jifeline's reasonable control, such as, but not limited to: force majeure, governmental measures, acts of terrorism or social unrest, technical failures beyond Jifeline's reasonable control (including, but not limited to loss of Internet connection) or acts of third parties, including, but not limited to, DDoS attacks; or (c) if Jifeline suspects or detects that malware is connected to Partner's account or is affecting Partner's or Authorised Users' use of the Service, notwithstanding any other articles in these General Terms and Conditions relating to suspension of access.
4.8. Jifeline will make commercially appropriate efforts to make the Services available and to schedule downtime on weekends (Central European Zone) and other off-peak hours. In the event that Jifeline temporarily suspends Partner's access to or use of the Service, Jifeline will make every effort to notify Partner in advance. In such case, Jifeline will provide an estimate of the duration of the suspension.
4.9. The Service is delivered "as is". Jifeline does not warrant that the Service will be delivered in a timely, sequential, accurate or complete manner. Neither the Service nor any communication in that context creates any warranty or extends any existing warranties.
5. FEES AND PAYMENT
5.1. The Fees shall be invoiced monthly in arrears.
5.2. Partner shall pay all Fees to Jifeline in accordance with the specifications and timing set out in the applicable Order Form.
5.3. The Fees are payable and communicated in euros (EUR), unless expressly agreed otherwise between the Parties.
5.4. The Fees shall be paid by Partner within 14 days from the date of the relevant invoice, in accordance with Jifeline's instructions.
5.5. Upon termination (cancellation) of the Agreement by Partner, Partner is not entitled to a refund of Fees paid to Jifeline.
5.6. The Fees are exclusive of VAT.
6. INTELLECTUAL PROPERTY
6.1. The Products and Services have been developed by Jifeline or by third parties on behalf of Jifeline. All Intellectual Property Rights in the Products and Services are solely vested in and belong to Jifeline and/or the applicable licensor(s)/suppliers. Nothing in the Agreement shall have the effect of transferring such rights (in part) to Partner, unless otherwise expressly agreed between the Parties.
6.2. Any Right of Intellectual Property that has been or will be acquired or created by Partner or any of its End Users (including any person involved herein by Partner or End User) in the use of the Hardware or Services shall be assigned to Jifeline pursuant to the relevant Order Form. Partner shall ensure that all agreements with its End Users contain the appropriate wording to effect the above assignment of Intellectual Property Rights through Partner to Jifeline.
6.3. Jifeline has the right to implement and maintain technical measures to protect the Intellectual Property Rights or other rights in the Software against unauthorised use, publication, transfer, distribution or copying. Partner shall not have the right to circumvent or undo any such measures or to cause any such acts to occur.
6.4. Partner's right to use Intellectual Property relating to the Products and/or Services is limited to the rights granted under the Agreement. All other rights are expressly reserved.
7. SUBLICENCE
7.1. Partner may grant a non-transferable sublicence to End Users to use the Jifeline/Partner application for vehicle diagnostics and remote programming.
8. OBLIGATIONS OF PARTNER
8.1. Partner may not modify, adapt or reverse engineer the Software in any way, or allow the Software to be combined with other programmes to form a combined application, unless mandatory applicable law provides otherwise.
8.2. Partner may not request, permit or authorise anyone other than Jifeline to provide maintenance and support services in relation to the Software.
8.3. Partner shall cooperate fully with Jifeline's staff in the diagnosis of any errors relating to the Services or Hardware used.
8.4. Partner shall provide to Jifeline free of charge all information reasonably required by Jifeline to enable Jifeline to perform the Services, including but not limited to remote access to a test environment, computer runs, printouts, office space and photocopies.
8.5. Partner shall inspect the Hardware upon delivery and report any complaints to Jifeline immediately, but in any case within 8 days of delivery.
8.6. Hardware sent to Jifeline for a warranty assessment or for any other reason must be sent at Partner's expense and risk, in accordance with Jifeline's instructions and accompanied by an RMA form. A return of Hardware to Jifeline shall constitute a transfer of ownership of such Hardware to Jifeline, unless otherwise agreed.
9. HARDWARE GUARANTEE
9.1. The Hardware delivered by Jifeline shall comply with the usual requirements and standards which can reasonably be applied to it at the time of delivery and which are applicable to the normal use of this Hardware in the European Union in the context of (the activities covered by) the Order Form.
9.2. Jifeline warrants that the Hardware it delivers shall be free of design, material and manufacturing defects for a period of 12 months after installation and commissioning. All Hardware shall in any case be deemed installed and used within one year after delivery, which means that the warranty period for certain Hardware shall in no case begin later than one year after delivery.
9.3. If Partner wishes to invoke the warranty in respect of the Hardware, it must prove - to Jifeline's satisfaction - that the Hardware contains a fault. Jifeline's obligations under the warranty do not extend beyond repairing the delivered Hardware or supplying new parts to rectify such a fault.
9.4. The warranty does not apply if Partner has used the Hardware in breach of the Agreement or applicable guidelines, manuals and/or specifications.
9.5. The warranty shall not apply if third parties carry out or have carried out repairs or work on the Hardware without Jifeline's prior written consent.
9.6. After the expiry of the warranty period, all costs for repair or replacement, including administration and shipping costs, will be charged to Partner.
10. RETENTION OF TITLE
10.1. Jifeline retains ownership of all Products to be delivered/delivered to Partner under the Agreement until the purchase price for all Products to be delivered has been paid in full by Partner.
11. FREEDOM
11.1. Each Party to the Agreement represents and warrants to the other Party that it has and retains during the Term all rights, title and powers to enter into and perform all its obligations under the Agreement and that it grants all licences to be granted under the Agreement.
11.2. Partner represents and warrants during the Term that: (a) it complies and will continue to comply with all laws and regulations that may be applicable to the Services; (b) in providing services to its End Users; (c) it holds all required licences and authorisations; (d) it will not infringe, or ensure that its End Users do not infringe, Jifeline's Intellectual Property Rights, it will not harm or invade the privacy of third parties, and will not misuse Confidential Information.
11.3. Partner indemnifies Jifeline (and its employees, suppliers, directors and agents) from and against any liability, damages, claims or costs (including reasonable legal fees and expenses) incurred by Jifeline as a result of: (a) breach of (any of) the warranties contained in the Agreement and/or these Terms and Conditions, including but not limited to breach of Sections 6 (Intellectual Property), 7 (Sublicensing), 12.3 (Provision of Services by Partner to End Users), 13 (Data Protection) or 14 (Confidentiality); or (b) violation by Partner of any applicable laws or regulations.
12. LIABILITY
12.1. Except for: (a) payment obligations of Partner and (b) the indemnities in Clause 11 (Indemnity) of these Terms and Conditions, the liability of each of the Parties, whether arising in contract, tort, negligence, pre-contractual obligations or other representations, or otherwise arising out of the Agreement or the performance of its obligations under the Agreement, shall be limited to the total amount paid under the Agreement, as specified in the applicable Agreement.
12.2. Neither Party shall be liable, whether arising in contract, tort (including negligence), pre-contractual obligations or other representations (other than fraudulent or negligent misrepresentation), or otherwise arising under the Agreement, for: (a) economic losses (including loss of revenues, profits, contracts, turnover or anticipated savings); or (b) special, indirect or incidental losses; whether or not such losses were already known to the Parties at the beginning of the Agreement.
12.3. The Service and the Products to be provided are intended to be used only by professionals trained to do so. The Service and the Products to be provided are no substitute for professional assessment. Partner is solely responsible for providing
diagnosis/advice/remote assistance or other services to End Users in the context of which Partner uses the Services and Hardware provided by Jifeline under the Agreement, and clearly communicates this to its End Users. Jifeline is neither directly nor indirectly a party to any service agreement entered into between Partner and its End User(s), nor can it be held liable for services provided by Partner under any
such agreement.
12.4. Jifeline accepts no liability if the Service is unavailable due to delays or omissions by or inaccuracies of third parties involved in the provision of
the Service.
13. DATA PROTECTION
13.1. In the general course of business, Jifeline processes all personal data in the role of data controller, unless otherwise provided in this Agreement.
13.2. To the extent that Jifeline accesses or processes End User Data, it does so on behalf of Partner and in the role of data processor. In such case, Jifeline's additional data processing rules set out in Annex I shall apply.
13.3. Partner shall process all End User Data in accordance with applicable laws and regulations, including but not limited to Regulation (EU) 2016/679 and any local implementations or successors thereof. More specifically, Partner shall ensure that all data subjects involved in the processing of End User Data by Jifeline are sufficiently informed thereof (either by Partner or by the relevant End User) and that their consent is obtained to the extent required under the applicable laws and regulations.
14. CONFIDENTIALITY
14.1. During the term of the Agreement and thereafter, Partner undertakes to keep Confidential Information, including Confidential Information of subsidiaries and affiliates of Jifeline, strictly confidential, and Partner further agrees not to disclose such Confidential Information to third parties. In the event that Partner has received Confidential Information from Jifeline prior to the execution of the Agreement, Partner agrees to keep such Confidential Information strictly confidential, not to use such Confidential Information and not to disclose such Confidential Information to third parties.
14.2 Partner's obligations set out in this Section 14 shall not apply to any part of the Confidential Information for which Partner can conclusively prove that such part:
a. was already in the public domain at the time it was disclosed by Jifeline to Partner;
b. disclosed through no fault of the Partner after it was disclosed to Partner by Jifeline;
c. is commonly known in the trade or industry in which Jifeline operates, and has not been acquired by breach of the Agreement/this Article; or
d. arises from the activities of employees or agents of Partner, unrelated to information disclosed to Partner by Jifeline.
14.3. In addition, Partner may provide Confidential Information in response to a valid order of a court or governmental authority, and if otherwise required by law.
14.4. Partner agrees to immediately deliver the original (or originals) and all copies of all such Confidential Information to Jifeline upon Jifeline's request.
15. TERM AND TERMINATION
15.1. The Agreement shall take effect on the date specified in the Order Form, or failing that on the date of execution of the Agreement ("Effective Date"), and shall be in force for the duration of the Term.
15.2. If the Order Form does not provide for a fixed Term, the following shall apply: the Agreement shall be in force for an initial period of twelve (12) months from the Effective Date (the "Initial Period"). After the expiry of the Initial Period, the Agreement will be automatically renewed for successive periods of twelve (12) months, unless the Agreement is terminated (terminated) by either Party, taking into account a notice period of three (3) months before the end of the Initial Period or the then current renewal period.
15.3 Partner's legal rights to rescind the Agreement in whole or in part are excluded to the extent permitted by applicable law, and consequently nothing in the Agreement shall be construed as a right of Partner to rescind the Agreement.
15.4 Either Party may immediately terminate the Agreement by giving written notice to the other Party if the other Party: (a) is guilty of a material breach of the Agreement and, in the case of a breach that can be remedied, has not remedied the breach within 14 days of receipt of written notice containing full details of the breach; or (b) dissolves itself (other than for the purposes of a merger or reorganisation) or if a court orders dissolution; or (c) is declared bankrupt or has applied for a moratorium. Such termination shall not affect any Fees paid prior to the time of termination.
15.5. In the event that the performance of the Services or the provision of Hardware or Software by Partner to its End Users may, in Jifeline's reasonable opinion, have a negative impact on Jifeline's good name and reputation, Jifeline has the right to suspend and/or terminate (part of) the Agreement with immediate effect.
15.6. Termination of the Agreement shall not affect the accrued rights or obligations of either Party, nor the status of any provision of the Agreement expressly or impliedly intended to take effect or remain in effect from or after such termination, including Articles 6 (Intellectual Property), 13 (Data Protection), 14 (Confidentiality), 16 (General) and 17 (Governing Law and Jurisdiction).
15.7 Upon termination, Partner must stop using the Software and ensure that its End Users do the same.
16. RELATIONSHIP
16.1. During the Agreement and for a period of two (2) years thereafter, the Parties and their Affiliates (if any) may not, directly or indirectly, solicit or attempt to solicit, directly or indirectly, customers (including, inter alia, customers such as Partner or customers acting as a type of End User) or business relationships of the other Party or the Affiliates of the other Party encourage or attempt to encourage and solicit and encourage them to stop doing business with the other Party or the affiliates of the other Party, or change their business relationship with the other Party or the affiliates of the other Party, or in any way intentionally interfere with the relationship between one or more of the above
named parties and the other Party or affiliates of the other Party (regardless of who initiates the contact).
17. GENERAL
17.1. Nothing in the Agreement shall be construed as creating a partnership, employment or joint venture of any kind between the Parties.
17.2. Neither Party may disclose, publish or advertise the existence or terms of the Agreement or any relationship with the other Party without the prior written consent of the other Party.
17.3. Amendments to the Agreement are valid only if agreed in writing by both Parties.
17.4. Jifeline is entitled to assign its rights and obligations under the Agreement, as well as the Agreement itself, to third parties.
17.5. All delivery dates/times and response times stated by Jifeline are indicative, unless expressly agreed otherwise between the Parties.
18. APPLICABLE LAW AND JURISDICTION
18.1. The Agreement, including any claims arising thereunder, shall be governed by and construed in accordance with Dutch law.
18.2. All disputes arising from or relating to the Agreement shall be submitted exclusively to the competent court in the district of Zeeland-West Brabant, the Netherlands, without prejudice to the right of appeal.
